Boston-Old Colony Insurance v. Warr , 127 Ga. App. 364 ( 1972 )

Quillian, Judge,

dissenting. There was evidence that the plaintiff received an offer in. the amount of $2,208.10 from the appellant on or about December 3, 1969, in settlement of the damage to his automobile. The evidence further shows that he contacted the appellant on December 3, 1969, and rejected the offer of settlement. The claims adjuster for the appellant testified that the amount offered the plaintiff was approximately $400 or $500 less than the amount to which the plaintiff was entitled. She stated that the reason for the error was that she did not know that the plaintiff was entitled to depreciation of the automobile.

Thus, there would be a question for the jury whether the offer of payment by the appellant was so inadequate as to amount to an absolute refusal to pay and if so, whether there was bad faith in such refusal. Firemen’s Ins. Co. v. Allmond, 105 Ga. App. 763, 767 (125 SE2d 545). If the jury determined that there was an absolute refusal to pay (or what was tantamount to a refusal to pay) this would constitute a waiver of any further demand for payment. Reserve Ins. Co. v. Campbell, 107 Ga. App. 311 (130 SE2d 236).

In my opinion, there was sufficient evidence, though in conflict, to authorize the jury to return a verdict for interest, penalty and attorney’s fees.

I am authorized to state that Judge Evans concurs in this dissent.